Telangana High Court
Ch. S.N. Murthy, vs D.V. Satayanarayana, Another, on 26 July, 2022
Bench: K.Surender
HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 719 of 2008
JUDGMENT:
1. The appellant filed complaint under Section 138 of the
Negotiable Instruments Act, 1881 (for short 'the NI Act')
against the respondent which was numbered as C.C.No.571
of 2002 on the file of IX Additional Chief Metropolitan
Magistrate, Hyderabad.
2. The learned Magistrate, after examining the appellant
as P.W.1 and marking Exs.P1 to P10 on behalf of the
complainant and Ex.D1 reply notice, found that the
respondent/accused was guilty of the offence under Section
138 of the NI Act and sentenced to RI for one year and to
pay fine of Rs.3,000/-.
3. Aggrieved by the said conviction, the respondent
herein filed Criminal Appeal No.222 of 2007 before the III
Additional Metropolitan Sessions Judge.
4. The appellant herein filed Criminal Revision Petition
No.92 of 2007 questioning the inadequate sentence passed
by the learned Magistrate.
5. The learned Sessions Judge disposed off both the
Criminal Appeal No.222 of 2007 filed by the respondent
herein and Crl.R.P.No.92 of 2007 filed by the appellant
herein by way of Common Judgment dated 22.02.2008
setting aside the conviction imposed on the
respondent/accused. As a consequence, the revision
petition filed by the complainant was dismissed. Aggrieved
by the acquittal recorded by the learned Sessions Judge, the
present appeal is filed.
6. The case of the complainant is that the respondent
approached him with proposal to develop the property of the
complainant at Narayanaguda, along with one Mr.Shantilal
Gandhi. The complainant paid an amount of Rs.4,00,000/-
for development of the said property. The development was
not undertaken and for the reason of misusing of
Rs.4,00,000/- given, a complaint was filed to the police.
The respondent agreed to repay the amount and issued two
cheques under Exs.P3 and P4. Prior to that, the
respondent/accused also executed two promotes under
Exs.P1 and P2. The said cheques when sent for clearance
were returned for the reason of payment stopped by the
drawer under cheque return memo under Ex.P6. The legal
notice Ex.P8 was issued, for which reply under Ex.P9 notice
was sent by the respondent. The learned Magistrate having
found that the respondent was liable to pay the said
amount, convicted the respondent as stated supra.
7. The defence of the respondent was that the amounts
were given to Mr.Shantilal Gandhi, who received the amount
from P.W.1 and not the respondent/accused.
8. The learned Sessions Judge acquitted the respondent
on the following grounds; i) P.W.1 complainant admitted
that the amount of Rs.4,00,000/- was paid to Mr.Shantilal
Gandhi through the respondent and execution of Exs.P1 to
P4 was by way of security given by the accused; ii) P.W.1
also admitted that the respondent stood as surety for the
amount paid to the said Mr.Shantilal Gandhi; iii) It is not
mentioned either in the complaint or the examination in
chief that Exs.P3 and P4 cheques were issued by the
respondent for the discharge of any enforceable debt or
liability; iv) P.W.1 admitted that he received Ex.P5 notice
wherein the respondent contended that P.W.4 has forcibly
taken Exs.P1 to P4. Ex.D1 is the office copy of notice dated
07.05.2002 issued by the respondent was addressed by the
complainant; v) Ex.P8 notice issued by P.W.1 is invalid for
the reason of demanding payment within seven days from
the date of receipt of notice and also demanding amount
towards interest and legal expenses.
9. The learned counsel for the appellant would submit
that the surety can also be prosecuted if the principal failed
to pay the money and the order of the learned Sessions
Judge has to be reversed.
10. As seen from the evidence on record, the amount of
Rs.4,00,000/- was directly paid by P.W.1 to Shantilal
Gandhi for which reason, it cannot be said that the
respondent is liable only for the reason of vouching for the
said Shantilal Gandhi. The conclusions arrived at by the
learned Sessions Judge are cogent and convincing for which
reason, there cannot be any interference with the well
reasoned judgment of the learned Sessions Judge in
acquitting the respondent/accused.
11. The Hon'ble Supreme Court in the case of
Radhakrishna Nagesh v. State of Andhra Pradesh1 held that
under the Indian criminal jurisprudence, the accused has
two fundamental protections available to him in a criminal
trial or investigation. Firstly, he is presumed to be innocent
till proved guilty and secondly that he is entitled to a fair
trial and investigation. Both these facets attain even greater
significance where the accused has a judgment of acquittal
in his favour. A judgment of acquittal enhances the
presumption of innocence of the accused and in some cases,
it may even indicate a false implication. But then, this has
to be established on record of the Court.
12. Accordingly, the Criminal Appeal is dismissed.
________________
K.SURENDER, J
Date: 26.07.2022
kvs
(2013) 11 supreme court Cases 688
HONOURABLE SRI JUSTICE K.SURENDER
Criminal Appeal No.719 of 2008
Date:26.07.2022
kvs
